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Friday, Jul 09, 2004

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Opinion - Leader Page Articles

Removal of Governors

By V.R. Krishna Iyer

The Constitution is too sublime, the President and the Governor too paramount to be pettifogged about.

THE CONSTITUTION being supreme, all powers are derived under it. The basic structure and the sublime semantic of the Suprema Lex circumscribe the instrumentalities of governance and when any controversy arises regarding the scope of authority, and limits of legality come in for interpretation, the Supreme Court pronounces what the law is and that declaration is binding on all authorities, civil and judicial.

The highest office under the Constitution is that of the President of India who will preserve, protect and defend the Constitution and the law. Among the powers of the President is the appointment of the Governor who shall hold office during his pleasure. What are the conditions subject to which the President's pleasure is exercised? In the Sarkaria Report, it is recommended that a person to be appointed as Governor should satisfy the following criteria:

He should be eminent in some walk of life; he should be a person from outside the State; he should be a detached figure and not too intimately connected with the local politics of the State; and he should be one who has not taken too great a part in politics generally, and particularly in the recent past.

In the selection of the Governor, the President shall act in accordance with the aid and advice of the Cabinet. In fact, the `aid and advice' tendered by the Prime Minister shall bind the President (vide Samsher Singh Case (1974 SC 2192)). The Sarkaria Report recommends "that the Governor's tenure of office of five years in a State should not be disturbed except very rarely and that too for some extremely compelling reasons. It is indeed very necessary to assure a measure of security of tenure to the Governor's office.

"While it is not advisable to give the same security of tenure to a Governor as has been assured to a Judge of the Supreme Court, some safeguard has to be devised against arbitrary withdrawal of President's pleasure; putting a premature end to the Governor's tenure. The intention of the Constitution-makers in prescribing a five-year term for this office appears to be that the President's pleasure on which the Governor's tenure is dependent, will not be withdrawn without cause shown. Any other inference would render clause (3) of Article 156 largely otiose. It will be but fair that the Governor's removal is based on procedure which affords him an opportunity to explain his conduct in question and ensures fair consideration of his explanation, if any," since it is in keeping with the principles of national justice. It is fundamental that the Court strikes down any executive action if arbitrary and the presidential pleasure if tainted by arbitrariness, malignity or frivolousness. `Pleasure' in the context of presidential power is not mere fancy, fury nor prejudice. It has to be a rational exercise, intelligible and intelligent and consistent with the dignity of constitutional authority. We must remember that a Governor is one in whom executive power of the State is vested, and authority for selection of the Chief Minister in critical situations is also bestowed. The discretion is thus serious and solemn. To remove a Governor on sheer pleasure of (the President) the Prime Minister is to stultify the President's office and make a joke of the office of the Governor.

India is a federal state in a fundamental sense. Although there are Central features whittling down federalism and quasi-federal dilution, to undo the federal character is to violate the basic structure. The Governor is the head of the State's ad repository of executive power and to debunk his stature and status is to frustrate the political ethos of the Constitution.

The Constitution is too sublime, the President and the Governor too paramount to be pettifogged about. If the Prime Minister or the party in power at the Centre is allergic or anathematic vis-à-vis the Governor, absent sound ground, farcically jettisoning the head of the State, what is at stake is the reverence of the people for the Constitution. This shall not be. Arbitrary exercise of power, victimising and humiliating the Governor, is legally an abuse of power and will be as absurd as the Governor dismissing a Minister, rejecting the advice of the Prime Minister. The apex court is the sentinel on the qui vive and with a due sense of gravity enforces the authority of the Constitution.

Maybe, there is a vast discretion covered by the expression `Presidential pleasure' in Article 156 (1) of the Constitution. Even so, the court has a constitutional vision and sees not the might of the Union, but the right writ in the federal structure.

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